In re Grading Bledsoe Hill
| Decision Date | 13 July 1909 |
| Parties | IN RE GRADING BLEDSOE HILL, BUCHANAN COUNTY, v. HENRY BLEDSOE, Appellant |
| Court | Missouri Supreme Court |
Appeal from Buchanan Circuit Court. -- Hon. Kendall B. Randolph Special Judge.
Appeal dismissed.
L. H Moss and Duncan & Utz for respondent.
The Supreme Court has no jurisdiction of this case for the reason that appellant never perfected his appeal within the time required by the statute authorizing appeals in such cases. The only provision for appeal in cases under this act is provided in section 9. There was no such thing as an appeal known to the common law. Schroeder v. Jabin, 94 Mo.App. 111. "An appeal is a purely statutory remedy and only exists in those cases specified or reasonably implied by the statute, and this is true of appeals in road cases, such as the one at bar." State ex rel. v. Woodson, 128 Mo. 497; Thomas v. Ins. Co., 89 Mo.App. 12; State ex rel. v. Bland, 189 Mo. 197. This being the case, we seriously urge that the appeal of appellant should be dismissed because instead of perfecting his appeal in 30 days, as he was required to do by section 9 aforesaid, he let it linger along with various dilatory orders and excuses for more than six months. The language of the statute in reference to appeal in this case is mandatory. Sidwell v Jett, 213 Mo. 601.
James W. Boyd for appellant.
This is an appeal from the circuit court of Buchanan county assessing damages to the appellant, Henry Bledsoe, in the sum of five hundred dollars, for injury to his land abutting and adjoining the public road, which was ordered graded by the county court of said county. The proceeding is bottomed upon the Act of the General Assembly of Missouri approved March 26, 1903 (Laws 1903 p. 148), entitled: "An Act to empower County Courts to grade public roads and to provide a method of paying damages caused by said grading."
This proceeding was commenced February 26, 1907, by the county court of said county making an order for the grading of the public road, along the lands of Henry Bledsoe, along the east line of sections 30 and 31 in township 55, range 35, in Buchanan county, according to a profile and specifications to be filed by the county surveyor of said county. A copy of all the steps taken in the county court was filed in the circuit court May 17, 1907, and thereupon the circuit court made its order of record, notifying all persons whom it might concern, that the 20th day of June, 1907, had been fixed by said court as the day and time for the ascertainment of damages, if any, to arise from the grading of the said public road, and that the same would be heard in the court room of Division No. One of said court in the court house in St. Joseph, and at that time commissioners would be appointed to ascertain and to report said damages; and it was further ordered that publication of said order be made for four consecutive weeks in the Catholic Tribune, a newspaper of general circulation in said county. On June 20, 1907, proof of the publication of said order was made to the circuit court, and Henry Bledsoe, the appellant herein, appeared and filed his claim for damages in the sum of $ 2,000. A change of venue was then taken from Judge Mossman to Judge Ramey's division, but Judge Ramey being sick at that time, Hon. W. D. Rusk was elected special judge to hold said court, but when this cause was reached, Judge Rusk having been of counsel, was disqualified; thereupon by agreement of counsel, Hon. K. B. Randolph, a member of the bar of said court, was selected as special judge to try said cause, and he presided therein until its conclusion in the circuit court, without any objection or exception having been made to his action as judge therein. On December 21, 1907, N. L. Byrne, David A. Turner and F. M. Atkinson, three disinterested freeholders of said county, were appointed commissioners, and on January 7, 1908, were duly sworn to ascertain and report the actual damages, under instructions of the court. In due time two of the said commissioners made their report, Mr. Atkinson being ill at the time, though he viewed the premises and heard the testimony.
The commissioners reported damages to the amount of $ 500 to Mr. Bledsoe by reason of the grading of the road making it necessary to make cuts from the road so as to permit ingress and egress from his premises. On February 27, 1908, Henry Bledsoe filed his exceptions to said report and March 9, 1908, was set down to hear the same.
After argument, on March 12, 1908, the court confirmed the report of the commissioners, and judgment was entered accordingly in favor of Henry Bledsoe against Buchanan county. On the same day Henry Bledsoe filed his affidavit for an appeal to the Supreme Court and his appeal was allowed, and thereupon leave was given him to file his bill of exceptions in said cause, during the next regular term of said circuit court. The bill was not filed during the May term, 1908, of said circuit court, but leave was given to file the same during the second week of the September term, 1908. On the first day of September term, 1908, the time for filing the bill of exceptions was extended to October 12, 1908. On October 7, 1908, the bill of exceptions was filed in the circuit court, and the transcript was lodged in this court April 17, 1908. On May 8, 1908, on motion of the county, the cause was advanced to the October term, and assigned to Division Two of the Supreme Court. Afterwards a motion to dismiss this appeal for failure to comply with the rules and because the cause should have been heard at the April term, 1908, was overruled by this division.
I. The first proposition advanced by the respondent, Buchanan county, is that this court is without jurisdiction of this appeal, for the reason that section 9 of the Act of the General Assembly approved March 26, 1903 (Laws 1903, p. 150) provides:
Certain fundamental principles must be kept in view in the consideration of the respective contentions of counsel. It is settled law in this State that, inasmuch as the right of appeal is purely statutory, the steps provided by statu...
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